HomeMy WebLinkAbout1997-11-04; City Council; 14423; TO AMEND CHAPTER 5.16 OF THE CARLSBAD MUNICIPAL CODE REGULATING MASSAGE BUSINESSES AND HOLISTIC HEALTH PRACTITIONERS*
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AB# ' )%Y%3 DEPT. HD. TITLE: TO AMEND CHAPTER 5.16 OF THE CARLSBAD
MUNICIPAL CODE REGULATING MASSAGE BUSINESSES
MTG. i{/q /P7
CITY MGR. %? DEPT. CA
CITY ATTY@ AND HOLISTIC HEALTH PRACTITIONERS
RECOMMENDED ACTION:
Adopt Ordinance No. fi5-yS0, approving Chapter 5,16 of the Carlsbad Municipal
Code as amended, to clarify the regulation of massage businesses.
ITEM EXPLANATION:
The Chief of Police has recommended revision to Carlsbad Municipal Code Chapter
5.16 to clarify which persons or entities are required to make application for a
massage business license. The investigation required prior to approval of the license
involves an inspection of the physical facilities which will be used to conduct the
business to address public health and sanitation concerns, as well as a fingerprint
submittal by the applicant(s) to be utilized for an inquiry into the applicant's criminal
record, if any, for sex offense convictions.
Uncertainty stems from the use of the term "establishment" in the ordinance which
requires that the "massage establishment" obtain a license. "Massage Establishment"
is defined as 'I.. .any establishment or operation wherein a massage is administered or
permitted to be administered". It is unclear whether the business owner/operafor, only
or the owner of the building wherein the business is conducted must also apply for a
~ license*
The revisions allow the Chief of Police, in his discretion, to require the owner or lessor
of the premises upon which the business is to be conducted to make a co-application
for the license when it appears that owner or lessor has some association or affiliation
with the massage business. This provision may prevent persons from circumventing
the purpose of the chapter, by placing the business in the name of one individual
when control over the business is also exercised by one or more other individuals
affiliated in some way with the business owner.
Section 5.16.370 has been added to the chapter to make it clear that this ordinance is
to be liberally construed in favor of regulation as determined necessary and
appropriate by the Chief of Police for the public protection and welfare.
FISCAL IMPACT:
None.
EXHIBITS:
I. Ordinance NO. NS-Y~O .
2. Exhibit "A', RedlinedEtrikeout Version.
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ORDINANCE NO. NS-430
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF CARLSBAD, CALIFORNIA, AMENDING EXISTING
TITLE 5, CHAPTER 5.16 OF THE CARLSBAD MUNICIPAL
CODE BY THE ADDITION OF A NEW CHAPTER 5.16 FOR
CLARIFICATION.
The City Council of the City of Carlsbad, California, does ordain as follows:
SECTION I: That existing Title 5, Chapter 5.16 of the Carlsbad Municip;
Code is amended to read as follows:
Chapter 5.1 6 1 MASSAGE BUSINESSES MASSAGE TECHNICIANS AND
HOLISTIC HEALTH PRACTITIONERS
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Sections:
5.16.010
5.16.020
5.16.030
5.16.050
5.16.055
5.1 6.060
5.16.070
5.16.080
5.16.100
5.16.120
5.16.130
5.16.140
5.16.150
5.16.160
5.16.180
5.16.190
5.16.21 0
5.16.220
5.16.240
5.1 6.25.0
5.1 6.255
5.1 6.260
5.16.270
5.16.280
5.16.170
Purpose and intent.
Definitions.
Massage business license required.
License application-Massage business.
Change in massage business manager.
Investigation fee-Massage business.
License investigation-Massage business.
Issuance'or denial of license.
Massage business.
Name of business.
Change of location.
Sale or transfer.
Inspection.
Massagist licensees to be employed.
Massages at permitted locations only.
Records of treatments.
Massage technician or holistic health practitioner license
required.
License application-Massage technician and holistic health
practitioner.
License investigation-Massage technician and holistic health
practitioner.
Transfer of license.
Possession and posting of license
Massage technician and holistic health practitioner operating
requirements.
Suspension or revocation of license.
Hearing.
Appeal.
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5.16.290 Injunctive relief.
5.1 6.300 Exemptions.
5.16.310 Violations.
5.1 6.320 Massage business license fee.
5.16.340 Massage technician trainee license.
5.16.350 Massage school license.
5.1 6.360 Constitutionality.
5.1 6.370 Interpretation.
. 5.16.330 Massage technician and holistic health practitioner license fee.
5.16.010 Purpose and intent.
It is the purpose and intent of this chapter to provide for the orderly regulation of th
massage business in the city by the adoption of a licensing procedure for massag
businesses, holistic health practitioners, and massage technicians. It is determined to b
necessary to further preserve and protect the health, safety and welfare of the inhabitants (
this city through the enactment of standards of sanitation, professional competence, fir
safety and building construction in regard to massage businesses, holistic healt
practitioners, and massage technicians. The business of massage is designated polic
regulated.
The ordinances codified in this chapter are adopted pursuant to Chapter 6, Part 1, (
Division I of Title 5 (Sections 51 030 through 51 034) of the California Government Code an
other applicable laws.
5.16.020 Definitions.
meanings ascribed to them in this section:
.procedure of exerting or applying pressure, friction, moisture, heat or cold to the extern;
parts of the human body by any physical or mechanical means, excepting such rubbin!
stroking, kneading, pounding or tapping of the human body by any physical or mechanicl
means and with or without the use of any ointments, liniments, oils, alcohols, or othc
For the purpose of this chapter, the following words and phrases shall have th
A. “Massage” means the administration by any person of any method (
substances as may be prohibited by state law:
B. ”Massage business” means any business or operation wherein
massage is administered or permitted to be administered either separately or in conjunctic
with the business of giving any Turkish, Russian, Swedish, vapor, sweat, electric, sa
shower, sponge or any other kind or character of baths;
C. “Massage technician” means any person who has obtained a massac
technician’s license pursuant to this chapter;
representative;
a holistic health practitioner’s license pursuant to this chapter;
D. “Health officer” means the health officer of the county or his authorize
E. “Holistic health practitioner” means any person who has obtained
F. “Off-premise massage’’ means the activity of providing massas
services at a location other than premises designated in the license of a massage busine!
pursuant to this chapter;
G. “Recognized school” means any school or institution of learning whic
has for its purpose the teaching of a course consisting of the theory, ethics and practic
methods, profession or work of massage in not less than three calendar months. and whic
school or institution of learning requires a resident massage technician or holistic heal
practitioner be furnished with a diploma or certificate of graduation from such school
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institution of learning showing successful completion of such course of study alread!
approved by the California State Department of Education or other comparable agency if
another state. Schools offering correspondence courses not requiring actual attendance a
class shall not be deemed a recognized school;
anus, perineum or female breasts below a point immediately above the top of the areola;
H. “Specified anatomical areas” means human genitals, pubic region
I. “License” means a license obtained from the Chief of Police pursuan
to the provisions of this chapter,
5.1 6.030 Massaqe business license required.
No person shall engage in, conduct, carry on or permit to be engaged in, conductec
or carried on, in or upon or within any premises within the city a massage business unless i
license for the operation of a massage business has been issued by the Chief of Police o
the city and unless the license remains in effect in conformity with the provisions of thir
chapter. Any license issued pursuant to this section shall be valid for five years from thc
date of issuance, unless suspended or revoked, ,,
5.1 6.050 License application-Massaae business.
Police and shall contain the following information:
Each application for a massage business license shall be submitted to the Chief c
A. A definition of services to be provided;
B. The location and mailing address of the proposed business;
C. The name and residence address and phone number of the applicant;
D. Name and address of all owners of the massage business, includin
corporate officers and directors, stockholder owning more than ten percent of th
corporation, and- general, managing and limited partners. Corporations shall also furnis
the name and address of an agent for service of process and the state of incorporation:
E. The applicant shall be the owner(s) of the massage business. If th
applicant is not responsible for the daily management and operation of the business, th
person who is responsible must also submit an application and pay a fee pursuant I
Section 5.16.060. The owner(s) or lessor(s) of the premises upon which the massag
business is to be conducted may, at the discretion of the Chief of Police, be required I
submit an application, if such owner(s)/lessor(s) has any association or affiliation with th
massage business in addition’to an ownership in the business premise;
F. The previous address of the applicant, if any, for a period of five yea’
immediately prior to the date of the application and the dates of residences at each;
G. Written proof that the applicant is over the age of eighteen years;
H. The height, weight, color of eyes and hair, and sex of the applicant;
I. Provision of acceptable government issued identification containir
J. A complete set of the applicant’s fingerprints and a photograph whic
K. Business, occupation or employment history of the applicant for ti
L. The history of the applicant in the operation of a massage business
similar business or occupation, including, but not limited to, whether or not such person,
previously operating in this or another city or state under license, has had such licenz
revoked or suspended and the reason therefor, and the business activity or occupatic
subsequent to such action of suspension or revocation;
M. All criminal convictions,. other than minor traffic violations, with a fl
explanation of the circumstances thereof for the massage ,business manager, the operat
the name, date of birth and photograph of the applicant;
shall be taken by the Chief of Police or his agent;
five years immediately preceding the date of the application;
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and the owner, including all partners, corporate officers and directors;
N. At the discretion of the Chief of Police, the applicant may be requirec
to submit the name and address of each massage technician or holistic health practitione
who is or will be employed in the business;
0. Such other identification and information necessary to discover thc truth of the matters hereinbefore specified as required to be set forth in the application.
5.16.055 Chanqe in massaqe business manager.
If the owner of a massage business is not acting as the manager of the busines:
and there is a change in managers, the new manager shall submit information required for
massage business application to the Chief of Police or his agent within thirty days c
becoming the new manager. The application information must be accompanied by a
investigation fee pursuant to Section 5.16.060. No other license fee pursuant to thi
chapter shall be required due to a change in massage business managers if the manager i
not the business owner.
5.1 6.060 Investiqation fee-Massaqe business.
A nonrefundable fee in an amount established by City Council resolution sha
accompany the submission of each application for a massage business license to defray, i i part, the'costs of investigation. The fee shall not be in lieu of, and shall be in addition to, th
license fee to be paid pursuant to the terms of this chapter.
5.1 6.070 License investiqation-Massaqe business.
reasonable time; not to exceed sixty days, in which to verify the application information an
to investigate the background of the applicant.
The Chief of Police shall notify the Planning, Building, Fire and Health Departmeni
regarding the pending application. The notified departments, within the thirty days from th
application date, shall inspect the premjses proposed to be devoted to the massag
businesses and shall make separate recommendations to the Chief of Police concernin
Upon receipt of a completed application and fee, the Chief of Police shall have
compliance with the provisions of this chapter and with the other applicable provisions t
state law and the municipal code.
5.16.080 Issuance of denial of license.
Based upon the results of his own investigation and upon the reports received fro1
the other City departments, the Chief of Police shall issue a massage business license if h
finds:
Comply with all applicable laws, including, but not limited to, the City's building, zoning, fir
and health regulations;
B. That the applicant, if an individual, or in the case of an applicant whic
is a corporation or a partnership, any of its officers, directors, holders of ten percent or mol
of corporation stock, has not been convicted in a court of competent jurisdiction of;
1. An offense involving the use of force or violence upon tt-
person of another, or
2. A crime requiring registration under Section 290 of tt
California Penal Code, or of any violation of Sections 266i, 315, 316, 318 or Subdivision (I
of Section 647 of the Penal Code, or
3. Any felony offense involving the sale of a controlled subst;
specified in Section 11054, 11055, 11056, 11057, or 11058 of the Health and Safety Code,
A. That the operation, as proposed by the applicant, if licensed, woul
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4. Any of the above substantive offenses as defined in the laws o
C. That the applicant has not knowingly and with intent to deceive madc false, misleading or fraudulent statement of fact in the license application or any othe
document required by the City in conjunction therewith;
any jurisdiction other than the state of California,
D. The applicant has met all the requirements of this chapter.
If one or more of the above described findings cannot be made, the license shall bl
denied. In the event of denial, notifications and reasons for denial shall be set forth i
writing by the Chief of Police and shall be sent to the applicant by means of registered c
certified mail or hand delivery. The denied applicant shall, at his election, have the right t
receive a hearing before the City Manager pursuant to the provisions of this chapter.
such a hearing is not requested within ten days of the notice of denial by the Chief of Policc
the denial shall be final.
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5.16.100 Massaqe business facilities.
No license to conduct a massage business shall be granted unless an inspection b
'the City reveals that the proposed business premises compy with each of the followin
A. A recognizable and legible sign shall be posted at the main entranc
identifying the premises as a massage business;
B. Minimum lighting shall be provided in accordance with the buildin
code of the City and, in addition, at least one artificial light of not less than sixty watts sha
be provided in each room or enclosure where massage services are performed on patrons;
C. Minimum ventilation shall be provided in accordance with the buildin
code of the City;
D: Recognizable and legible signs shall be posted at all exits identifyin
each such exit in accordance with the fire code of the City;
E. Hot and cold running water shall be provided to a metal or cerami
coated metal utility sink approved by the San Diego County health department;
F. Equipment approved by the health department for disinfecting an
sterilizing instruments used in performing acts of massage shall be provided;
G. Closed cabinets shall be provided and utilized for the storage of clea
linen; H. Adequate bathing, dressing, locker and toilet facilities shall b
provided for patrons. A minimum of one tub or shower, one dressing room containing
separate locker for each patron to be served, which locker shall be capable of being lockec
and a minimum of one toilet and one wash basin shall be provided by every massag
business; provided, however, that if male and female patrons are to be serve
simultaneously at the business, a separate massage room or rooms, separate dressin
facilities and separate toilet facilities shall be provided for male and female patrons; furthe
in those businesses where steamrooms or sauna baths are provided, if male and fema'
patrons are to be served simultaneously, separate steamrooms or sauna rooms shall t
provided for male and female patrons;
I. All walls, ceilings, floors, pools, showers, bathtubs, steamrooms ar
all other physical facilities for the business premises must be in good repair and maintain€
in a clean and sanitary condition. Wet and dry heat rooms, steam or vapor rooms, or stea
or vapor cabinets, shower compartments, and toilet rooms shall be thoroughly cleaned ar
disinfected with a disinfectant approved by the health department each day the business
in operation. Bathtubs shall be thoroughly cleaned and disinfected with a disinfecta
minimum requirements:
1 approved by the health department after each US'
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J. Clean and sanitary towels and linens shall be provided for each patrol
of the business. No common use of towels or linens shall be permitted;
K. A minimum of one separate wash basin shall be provided in eacl
massage business premises for the use of employees of any such business, which basi
shatl provide soap or detergent and hot and cold running water at all times and shall bl
located within or as close as practicable to the area devoted to the performing of massags
services. In addition, there shall be provided at each wash basin, sanitary towels placed i
permanently installed dispensers.
This section shall be construed to require minimum standards only. All applicabl
provisions of the municipal code shall have full force and effect and the applicant shall b
required to comply therewith.
5.1 6.1 05 Massaqe businesses tmeratinq requirements.
The operating requirements for massage businesses are as follows:
A. No owner, operator, responsible managing employee, manager, c
permittee in charge of or in control of a massage business shall permit a massage to b
given unless the patron’s specified anatomical areas are covered by the covering provide
by the business. Each business shall provide to all patrons clean, sanitary and opaqu
covering capable of covering the patron’s specified anatomical areas. No common use c
such covering shall be permitted, and reuse is prohibited unless having been adequate1
cleaned;
9. With the exception of bathrooms, showers and dressing rooms, n
owner, operator, responsible managing employee, manager or permittee in charge of or i
control of any massage business shall permit any person in any area within the massag
business premise which is used by the patrons or which can be viewed by patrons fror
such an area, unless the person’s specified anatomical areas are fully covered. In additior
no owner, operator, responsible managing employees, manager or permittee in charge of c
in control of a massage business shall permit any person to be in any room with anothc
C. No owner, operator,. responsible managing employee, manager (
permittee in charge of or in control of a massage business shall permit any employee to b
on the premises of a massage business during its hours of operation of a massag
business unless the employee is fully covered from a point not to exceed four inches abov
the center of the kneecap to’ the base of the next excluding the arms, with the followin
exception: shorts may be worn so long as they extend down the leg a minimum of thre
inches from the crotch, and the body above the point is fully covered to the base of th
neck, excluding the arms. The covering, which includes trousers, pants or shorts, will be (
an opaque material and will be maintained in a clean and sanitary condition;
D. No owner, operator, responsible managing employee, manager (
permittee in charge of or in control of a massage business shall, during the course of ar
service or task associate with the operation of a massage business, permit any person 1
massage or intentionally touch the specified anatomical areas of another person;
E. No owner, operator, responsible managing employee, manager (
permittee in charge of or in control of a massage business shall permit persons other than
health practitioner to perform a massage in a massage business.
5.16.110 DisDlav of license’s.
Every person issued a license under the terms of this chapter shall display tt
license in a conspicuous place so that the same may be readily seen by persons enterir
the premises where the massage, bath, or treatment is given.
person unless all persons’ specified anatomical areas are fully covered;
licensed massage technician, licensed massage technician trainee or licensed holist
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5.16.120 Name of business.
any name or conduct his business under any designation not specified in his license.
5.16.130 Chanqe of location.
No person licensed to do business as provided in this chapter shall operate undc
A change of location of a licensed massage business may be approved by the Chi(
of Police: provided all applicable provisions of this code are complied with and a change ( location fee of fifty dollars to defray, in part, the costs of investigation and inspection ha
been paid to City.
5.16.140 Sale or transfer.
Upon the sale or transfer of any interest in a massage business, the license for th:
business shall be null and void. A new application shall be made by any person desiring t
own or operate the massage business. An application fee of fifty dollars shall be payabl
for each such application. If the location of the licensed premises is to be changed, th
applicant shall also pay the change of location fee required by Section 5.16.130.
5.16.1 50 Inspection.
Representatives of the City departments of building inspection, housing, fire, polic
and health shall have the right to enter the premises from time to time during reguk
business hours for the purpose of making reasonable inspections to enforce complianc
with building, fire, electrical, mechanical, plumbing or health regulations. This shall nc
restrict or limit the rioht of entry vested in any law enforcement agency. The Cii
departments shall cause such inspections to be made at least twice a year.
5.16.160 Massaqist licensees to be employed.
No massage business licensee shall employ, or otherwise allow, any person t
perform as a massage technician or holistic health practitioner who is not so licensed undc
the terms of this chapter.
5.16.170 Massaqes at permitted locations only.
No person shall administer a massage or permit a massage to be administered at (
upon any location or premises other than a validly licensed massage business, except thi
validly licensed holistic health practitioners may administer off-premises massages betwee
the hours of six a.m. and eleven p.m. The giving of massages at hours other than these I
prohibited.
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5.16.1 80 Records of treatments.
chapter shall keep a record of the date and hour of each treatment, the name and addre:
of the patron, and the name of the employee administering such treatment. The recoi
shall be open to inspection by officials charged with the enforcement of these provisions fc
the purposes of law enforcement and for no other purpose. The information furnished (
secured as a result of any such inspection shall be confidential. Any unauthorize
disclosure or use of such information by any officer or employee of the City constitutes
misdemeanor and such officer or employee shall be subject to the penalty provisions of th
code, in addition to any other penalties provided by law. The records shall be maintain€
for a period of ninety days.
5.16.190 Massaqe technician or holistic health practitioner license reauired. No
Every person operating a massage business under a license issued pursuant to th
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person shall administer a massage for any form of consideration within the City unless suc
person has been licensed as a massage technician or holistic health practitioner by th
Chief of Police of the City and unless such license remains in effect in conformity with th
provisions of this chapter. Any license issued pursuant to this section shall be valid for fiv
years from the date of issuance, unless suspended or revoked.
5.1 6.210 License application-Massaae technician and holistic health
practitioner.
Each application for a massage technician or holistic health practitioner license sha
be submitted to the Chief of Police and shall contain the following information:
A. The applicant's full name, residence address and telephone number;
B. The name and address and telephone number of the massag
business where the applicant is to be employed and the name of the owner of same;
C. The names and addresses of any and all previous businesses wher
the applicant has been employed as a massage technician or holistic health practitioner;
D. The criminal record, if any, other than minor traffic violations, of th
applicant;
E. Whether any license to perform as a holistic health practitioner (
massage technician previously was denied the applicant or revoked and, if so, th
circumstances of such denial or revocation;
F. A photograph and complete set of the applicant's fingerprints whic
shall be taken by the Chief of Police or his agent;
G. Written proof that th,e applicant is over the age of eighteen years;
H. A certificate signed by a medical doctor stating that the applican
within thirty days immediately prior to filing his or her application herein, has been examine
and found to be .free of syphilis, tuberculosis or other contagious or communicable diseas
which is likely to be communicated during the administration of a massage;
I. Applicant must furnish a diploma or certificate of graduation from
recognized school or other institution of learning wherein the method, profession and WOI
of massage is taught. Proof of successfu1,completion of two hundred hours of study from
recognized school is required for a massage technician license and proof of successf
completion of one thousand hours of study from a recognized school is required for
holistic health practitioner license. The City has the right to confirm the fact that tk
applicant has actually attended classes in a recognized school for the aforementione
minimum time periods. In lieu of the foregoing educational requirements, an applicant for
massage technician license may submit verifiable written proof that he or she has actual
been engaged in practice as a massage technician for not less than one year and hz
passed the national certification examination for massage therapists and bodywork;
J. Before a license is issued to a holistic health practitioner, proof t
membership in a state or nationally recognized organization devoted to and organized fc
the benefit and furtherance of holistic health practitioner practices as approved by the Ci
Manager. In the event of a dispute regarding a decision of the City Manager under th
section, an aggrieved person may appeal to the City Council by filing an appeal with the Ci
Clerk within ten calendar days of the written notice of decision by the City Manager. Fee fc
filing an appeal under this section shall be established by a resolution of the City Counci~
The decision of the City Council shall be final;
K. Before a license is issued to a holistic health practitioner, the applica
shall deliver a policy of insurance executed by a company duly authorized under the laws
this state to do insurance by the provisions of which policy such company promises ar
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undertakes to pay in full all legal liability incurred by the insured for damages to persons c
property resulting from such a practice in an amount as established by a resolution of th
City Council.
5.16.21 5 lnvestiuation fee-Massage technician and holistic health
practitioner.
A nonrefundable fee as set by resolution of the City Council shall accompany th
submission of each application for a holistic health practitioner or massage technicia
license to defray in part the costs of investigation. The fee shall not be in lieu of, and shz
be in addition to, the license fee to be paid pursuant to the terms of this chapter.
5.16,220 License investigation-Massage technician and holistic health
practitioner.
Upon receipt of a completed application and fee, the Chief of Police shall have
reasonable time, not to exceed sixty days, in which to verify the application information an
to investigate the background of the applicant. Upon completion of that process, the Chi(
of Police shall issue the license if it is found that:
A. The applicant has not been convicted in a court of compete1
jurisdiction of;
1. An offense involving the use of force or violence upon th
person of another,
2. Any crime requiring registration under Section 290 of th
California Penal Code, of any violations of Sections 2661, 315, 316, 318 or Subdivision (b) (
Section 647 of the Penal Code,
3. Any felony offense involving the sale of a controlled substanc
specified in Sections 11054, 11 055, 11056, 11057 or 11058 of the Health and Safety Code
4. Any of the above substantive offenses as defined in the laws (
any jurisdiction other than the state;
8. The applicant has not knowingly and with intent to deceive made an
false, misleading or fraudulent statement of fact in the license application or in any otht
document required by the City in conjunctibn therewith;
If one or more of the above described findings cannot be made, th
license shall be denied. In the event of denial, notifications and reasons for denial shall b
set forth in writing by the Chief of Police and shall be sent to the applicant by means (
registered or certified mail or hand delivery. The denied applicant shall, at his election, hav
the right to a hearing before the City Manager pursuant to the terms of this chapter. If SUC
a hearing is not requested within ten days of the notice of denial by the Chief of Police, th
denial shall be final.
,I
5.16.240 Transfer of license.
No holistic health practitioner or massage technician license is transferable.
5.16.250 Possession and Dostinq of license.
Each massage business licensee shall post in a conspicuous place within th
massage business the individual license of each massage technician or holistic heal
practitioner performing massages in the business. Holistic health practitioners shall have
valid license in their possession when administering an off-premises massage.
5.16.255 Massaae technician and holistic health Dractitioner oDeratinu
reauirements.
The operating requirements for massage technicians and holistic health practitionel
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are as follows:
A. No massage technician or holistic health practitioner, while performing an
task or service associated with the business of massage, shall be present in any room wit
another person unless the person’s specified anatomical areas are fully covered;
B. No massage technician or holistic health practitioner shall be on th
premises of a massage business during its hours of operation while performing or availabl
to perform any task or service associated with the operation of a massage business, unles
the massage technician or holistic health practitioner is fully covered from a point not t
exceed four inches above the center of the kneecap to the base of the neck, excluding th
arms, with the following exception: shorts may be worn so long as they extend downjh
leg a minimum of three inches from the crotch, and the body above that point is full
covered to the base of the neck, excluding the arms. In addition, no massage technician c
holistic health practitioner shall perform any task or service associated with the business c
massage while in the presence of another person unless the massage technician or holisti
health practitioner is fully covered from a point not to exceed four inches above the center c
the kneecap to the base of the neck, excluding the arms, with the following exception:
shorts may be worn so long as they extend down the leg a minimum of three inches fror
the crotch, and the body above that point is fully covered to the base of the neck, excludin
the arms. For purposes of this subsection, the covering, which includes trousers, pants c
shorts, will be of an opaque material and will be maintained in a clean and sanitar
condition;
C. No massage technician or holistic health practitioner, while performin
any task or service associated with the business of massage, shall massage or intentionall
touch the specified anatomical areas of another person or allow another person to massag
or intentionally touch the specified anatomical areas of the massage technician or holisti
health practitioner.
5.16.260 Suspension or revocation of license.
In the event that any, person holding a license issued pursuant to this chaptc
violates or causes or permits to be violated any of the provisions of this chapter or an
provision of any other ordinance or law‘ relating to or regulating massage businesse:
holistic health practitioners, or massage technicians, or conducts or carries on SUC
business or occupation in an unlawful manner or in such manner as to constitute a publi
nuisance, the City Manager‘may, in addition to other penalties provided by ordinanct
suspend or revoke the license as follows:
A. The City Manager shall notify the licensee in writing of the intende
action and the reasons therefor, and of the right to request a hearing in regard thereto;
B. The action indicated in the written notice shall be final unless th
licensee files a written request for hearing with the City Manager within ten days of th
notice;
C. If a notice of hearing is received, the City Manager shall proceed i
accord with Section 5.16.270.
5.1 6.270 Hearinq.
Any person who has been denied a license by the Chief of Police or who is license
pursuant to this chapter and who has received a notice of intent to suspend or revoke th
license may request a hearing before the City Manager. Upon receipt of a timely writte
request for hearing, the City ‘Manager shall call a hearing and shall set forth in writing an
send to the applicant or licensee or permittee, by means of registered mail, certified mail (
hand delivery, notice that within a period of not less than five days nor more than fourtee
days from the date of the posting of the notice, a h,earing shall be conducted to determin
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the existence of any facts which constitute grounds for the denial, suspension or revocatic
of a license or permit. The notification shall include the date, time and place of the hearin!
The hearing shall be conducted by a hearing officer appointed by the City Manager. Tt
applicant, licensee or permittee may have the assistance of counsel or may appear t
counsel and shall have the right to present evidence. In the event that the applicar
licensee or permittee, or counsel representing the applicant, licensee or permittee, fails '
appear at the hearing, the evidence of the existence of facts which constitute grounds fi
the denial, suspension or revocation of the license or permit shall be considered unrebutte
The hearing need not be conducted according to the rules of evidence. Any releva
evidence may be admitted and considered by the City Manager if it is the sort of evidenc
on which responsible persons are accustomed to rely in the conduct of serious affairs
Objections to evidence shall be noted and a ruling given by the hearing officer. A copy f
the decision of the hearing officer specifying findings of fact and the reasons for the decisic
shall be furnished to the applicant or licensee. The hearing officer shall inform the pan
against whom the decision is rendered of his right to appeal to the City Council pursuant 1
this chapter. Any decision not so appealed is final.
5.16.280 Appeal.
,.
Within ten days after receipt of the decision of the hearing officer, any party affecte
City Council. Upon the filing of such a request, the City Clerk shall, within fourteen da)
thereafter, set the matter for a hearing and shall notify the appellant of the date, time ar
place of such hearing at least five days before the hearing date. At the hearing, any persc
may present evidence in opposition to, or in support of, appellant's case. At the conclusic
of the hearing, the City Council shall either grant or deny the appeal, and the decision of tt-
City Council shall be final.
5.16.290 lniunctive relief.
In addition to the legal remedies provided for in this code, the operation of an
massage business in violation of the terms of this chapter is a public nuisance and may b
enjoined by the City.
5.16.300 Exemptions.
by the decision may file with the City Clerk a written request for a public hearing before th
, I.
This chapter shall not apply to:
A. Physicians, surgeons, chiropractors, osteopaths, psychiatrist!
psychologists, clinical social workers, family counselors and clergymen who are licensed t
practice their respective professions in the state or who are permitted to practice temporafii
under the auspices of an associate or business duly licensed in the state;
6. Nurses who are registered under the laws of this state and wh
administer a massage in the normal course of nursing duties;
C. A trainer of any duly constituted athletic team who administers i
massage in the normal course of training duties;
D. Barbers and beauticians who are duly licensed under the laws of thi
state and who administer a massage in the normal course of their duties;
E. Any duly licensed business in which the above described person
practice their respective professions;
F. Hospitals, nursing homes, sanitariums, persons holding an unrevoke'
certificate to practice'the healing arts under the laws of the state, or persons working unde
the direction of any such person or in any of such businesses.
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5.16.31 0 Violations.
guilty of a misdemeanor punishable as provided in Section 1.08.010.
5.1 6.320 Massaqe business license fee.
Any person who violates any of the provisions of this chapter upon conviction
Any person obtaining a massage business license shall pay to the license collector license fee in an amount established by City Council resolution and payable when tt
license issues. This license fee shall be in lieu of a business license tax.
5.16.330 Massaae technician and holistic health practitioner license fee.
Any person obtaining a license to act as a holistic health practitioner or massaZ
technician shall pay to the license collector a license fee in an amount established by tt
City Council resolution. This license fee shall be in lieu of a business license tax.
5.1 6.340 Massaae technician trainee license.
The following provisions apply to a massage technician trainee license:
A. Any person who qualifies for a massage technician license but for tt
educational requirement of Section 5.16.210 may obtain a trainee license. Such persc
must be enrolled in a “recognized school’’ and submit a letter from the school showing tt
date the applicant was officially enrolled and the estimated date the applicant will graduate
Applicants may also provide verifiable proof that they are registered to take the nation
certification examination for therapeutic massage and bodywork in lieu of the education
requirement;
B. Applicant shall also submit a letter signed by the owner of a massac
business, or their representative, stating their willingness to employ the applicant to c
massage as a massage technician trainee working under the direct supervision and contr
of a licensed massage technician or holistic health practitioner during the time the applical
is completing a course of study as a massage technician at a recognized school or until tt
applicant has successfully passed the national certification examination for therapeut
massage and bodywork;
C. The massage trainee iicense shall expire one year form the da’
issued and is not renewable, except in the case of sickness or accident for which reason tl-
education or certification exam was delayed. Applicant is expected to successful
complete the massage tectinician course of study or pass the national certificatic
examination for therapeutic massage and bodywork during the one-year time period tt
license is valid. The trainee must at all times comply with all laws and ordinances in effe
and the failure to comply may render the applicant ineligible to obtain a massac
technician’s license.
5.1 6.350 Massaqe school license.
It is unlawful for any person to operate massage school in the City unless that schol
has qualified as a “recognized school” as defined in this chapter. If a school so qualifies,
shall be treated as a massage business for licensing purposes and shall be subject to i
provisions of this chapter applicable thereto.
Any persons employed in the school and involved with giving massage for instructic
or other purposes, shall be considered massage technicians for licensing purposes ar
shall be subject to provisions of this chapter applicable thereto.
5.16.360 Constitutionalitv.
If any section, subsection, sentence, clause or phrase of this chapter is for
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any reason held to be invalid, such decision shall not affect the validity. of the remainin
portions of this chapter. The Council declares that it would have adopted the chapter an
each section, subsection, sentence, clause or phrase thereof, irrespective of the fact thi
any one or more sections, subsections, sentences, clauses or phrases be declared invalid.
5.16.370 Interr,retation,
necessary and appropriate by the Chief of Police for the public protection and welfare an(
in order to accomplish its purpose and intent,
This chapter shall be construed liberally in favor of regulation as determined
EFFECTIVE DATE: This ordinance shall be effective thirty days after its adoptiol
and. the city clerk shall certify the adoption of this ordinance and cause it to be published i
least once in a newspaper of general circulation in the City of Carlsbad within fifteen da)
after its adoption.
INTRODUCED AND FIRST READ at a regular meeting of the Carlsbad City Counc
P 12 on the 4th day of November , 1997, and thereafter
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$055 l4 Carlsbad on the - day of , 1997, by the following vote, to wit:
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APPROVED AS TO FORM AND LEGALITY
RONALD R. BALL, City Attorney
ATTEST:
CLAUDE A. LEWIS, Mayor
ALETHA L. RAUTENKRANZ, City Clerk
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EXHIBIT “A”
ChaDter 5.16
MASSAGE EIT,- ~‘ws~NE~ssEs
, ,, , G, . , MASSAGE TECHNICIANS AND
HOLISTIC HEALTH PRACTITIONERS
Sections:
5.16.010
5.1 6.020
5.16.030
5.16.050
5.1 6.055
5.1 6.060
5.1 6.070 5; 16.080
.5.16.100
5.16.1 10
5.16.120
5.16.130
5.16.140
5.16.150‘
5.16.160
5.16.170
5.16.180
5.16.190
5.16.210
5.16.215
5.1 6.220
5.1 6.240
5.1 6.250
5.1 6.255
5.1 6.260
5.16.270
5.1 6.280
5.1 6.290
5.16.300
5.16.310
5.16.320
5.1 6.330
5.1 6.340
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Schools offering correspondence courses not requiring actual attendance at class
shall not be deemed a recognized school;
&)I%.; “Specified anatomical areas” means human genitals, pubic
region, anus, perineum or female breasts below a point immediately above the top
of the areola; (t@k “License” means a license obtained from the Chief of Police
pursuant to the provisions of this chapter.
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application shall be made by any person desiring to own or operate the massage - b’usi$ess. An application fee of fifty dollars shall be payable for each
such application. If st& the location of the licensed premises is to be changed, the
applicant shall also pay the change of location fee required by Section 5.1 6.1 30.
5.1 6.150 Inspection.
Representatives of the City departments of building inspection, housing, fire,
police and health shall have the right to enter the premises from time to time during
regular business hours for the purpose of making re,asonable inspections to enforce
compliance with building, fire, electrical, mechanical, plumbing or health ’
regulations. This shall not restrict or limit the right of entry vested in any law
enforcement agency. The City departments shall cause such inspections to be
made at least twice a year.
5.16.160 Massauist licensees to be emploved.
No massage - busirie& licensee shall employ, or otherwise
allow, any person to perform as a massage technician or holistic health practitioner
who is not so licensed under the terms of this chapter.
~..,;;::._. 1
5.16.170 Massaues at permitted locations only.
No person shall administer a massage or permit a massage to be
administered at or upon any location or premises other than a validly licensed
massage w buSii3\eSS, except that validly licensed holistic health
practitioners may administer off-premises massages between the hours of six a.m.
and eleven p.m.‘ The giving of massages at hours other than these is prohibited.
5.16.180 Records of treatments.
Every person operating a massage es&”& business , ,... : . , under a license
treatment, the name and address of the patron, and the name of .the employee
administering such treatment. The record shall be open to inspection by officials
charged with the enforcement of these provisions for the purposes of law
enforcement and for no other purpose. The information furnished or secured as a
result of any such inspection shall be confidential. Any unauthorized disclosure or
use of such information by any officer or employee of the City constitutes a
misdemeanor and such officer or employee shall be subject to the penalty
provisions of this code, in addition to any other penalties provided by law. The
records shall be maintained for a period of ninety days.
issued pursuant to this chapter shall keep a record of the date and hour of each
5.16.190 Massaae technician or holistic health practitioner license required.
No person shall administer a massage for any form of consideration within
the City unless such person has been licensed as a massage technician or holistic
health practitioner by the Chief of Police of the City and unless such license
remains in effect in conformity with the provisions of this chapter. Any license
issued pursuant to this section shall be valid for five years from the date of
issuance, unless suspended or revoked.
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place within the massage w bg$i#$s$ the individual license of each
massage technician .t,. . , , or holistic health practitioner performing massages in the - b@si.@Sg. Holistic health practitioners shall have a valid license in
their possession when administering an off-premises massage.
5.16.255 Massaue technician and holistic health Practitioner operatinu
@Ay No massage technician or holistic health practitioner, while
performing any task or service associated with the business of massage, shall be
present in any room with another person unless the person's specified anatomical
areas are fully covered; @Bi No massage technician or holistic health practitioner shall be
on the premises of a massage - bMiies,.s during its hours of operation
while performing or available to perform any task or service associated with the
operation of a massage business, unless the massage technician or holistic health
practitioner is fully covered from a point not to exceed four inches above the center
of the kneecap to the base of the neck, excluding the arms, with the following
exception: shorts may be worn so long as they extend down the leg a minimum of
base of the neck, excluding the arms. In addition, no massage technician or holistic
health practitioner shall perform any task or service associated with the business of
massage while in the presence of another person unless the massage technician or
holistic health practitioner is fully covered from a point not to exceed four inches
above the center of the kneecap to the base of the neck, excluding the arms, with
the following exception: shorts may be worn so long as they extend down the leg a
minimum of three inches from the crotch, and the body above that point is fully
covered to the base of the neck, excluding the arms. For purposes of this
subsection, the covering, which includes trousers, pants or shorts,. will be of an
opaque material and will be maintained in a clean and sanitary condition; (e)G., No massage technician or holistic health practitioner, while
performing any task or service associated with the business of massage, shall
massage or intentionally touch the specified anatomical areas of another person or
allow another person to massage or intentionally touch the specified anatomical
areas of the massage technician or holistic health practitioner,
. ~,:,:,:,." ...._._
three inches from the crotch, and the body above that point is fully covered to the
5.16.260 SusDension or revocation of license.
In the event that any person holding a license issued pursuant to this chapter
violates or causes or permits to be violated any of the provisions of this chapter or
any provision of any other ordinance or law relating to or regulating massage - gi,$iiesses, holistic health practitioners, or massage technicians, or
conducts or carries on such business or occupation in an unlawful manner or in
such manner as to constitute a public nuisance, the City Manager may, in addition
to other penalties provided by ordinance, suspend or revoke the license as follows:
HA; The City Manager shall notify the licensee in writing of the
intended action and the reasons therefor, and of the right to request a hearing in
regard thereto;
4335. The action indicated in the written notice shall be final unless
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the licensee files a written request for hearing with the City Manager within ten days
of the notice; @:e!, If a notice of hearing is received, the City Manager shall
proceed in accord with Section 5.16.270.
5.1 6.270 Hearing.
Any person who has been denied a license by the Chief of Police or who is
licensed pursuant to this chapter and who has received a notice of intent to
suspend or revoke the license may request a hearing before the City Manager.
Upon receipt of a timely written request for hearing, the City Manager shall call a’
hearing and shall set forth in writing and se.nd to the applicant or licensee or
permittee, by means of registered mail, certified mail or hand delivery, notice that
within a period of not less than five days nor more than fourteen days from the date
of the posting of the notice, a hearing shall be conducted to determine the
existence of any facts which constitute grounds for the denial, suspension or
revocation of a license or permit. The notification shall include the date, time and
place of the hearing. The hearing shall be conducted by a hearing officer
appointed by the City Manager. The applicant, licensee or permittee may have the
assistance of counsel or may appear by counsel and shall have the right to present
evidence. In the event that the applicant, licensee or permittee, or counsel
representing the applicant, licensee or permittee, fails to appear at the hearing, the
evidence of the existence of facts which constitute grounds for the denial,
suspension or revocation of the license or permit shall. be considered unrebutted.
The hearing need not be conducted according to the rules of evidence. Any
relevant evidence may be admitted and considered by the City Manager if it is the
sort of evidence on which responsible persons are accustomed to rely in the
by the hearing officer. A copy of the decision of the hearing officer specifying
findings of fact and the reasons for the decision shall be furnished to the applicant
or licensee. The hearing officer shall inform the party against whom the decision is
rendered of his right to appeal to the City Council pursuant to this chapter. Any
decision not so appealed is final.
5.1 6.280 Appeal.
Within ten days after receipt of the decision of the hearing officer, any party
affected by the decision may file with the City Clerk a written request for a public
hearing before the City Council. Upon the filing of such a request, the City Clerk
shall, within fourteen days thereafter, set the matter for a hearing and shall notify
the appellant of the date, time and place of such hearing at least five days before
the hearing date.. At the hearing, any person may present evidence in opposition
to, or in support of, appellant‘s case. At the conclusion of the hearing, the City
Council shall either grant or deny the appeal, and the decision of the City Council
conduct of serious affairs, Objections to evidence shall be noted and a ruling given
shall be final,
i 5.1 6.290 lniunctive relief.
In addition to the legal remedies provided for in this code, the operation of
any massage - busin&$ in violation of the terms of this chapter is a
public nuisance and may be enjoined by the City.
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5.1 6.31 0 Violations.
conviction is guilty of a misdemeanor punishable as provided in Section I .08.010.
5.1 6.320 Massaue -
to the license collector a license fee in an amount established by City Council
resolution and payable when the license issues. This license fee shall be in lieu of
a business license tax.
Any person who violates any of the provisions of this chapter upon
bbsi:ndss license feem
Any person obtaining a massage - bM$id&$ license sha\l pay
5.1 6.330 Massage technician and holistic health practitioner license fee.
Any person obtaining .a license to act as a holistic health practitioner or
massage technician shall pay to the license collector a license fee in an amount
established by the City Council resolution. This license fee shall be in lieu of a
business license tax.
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health practitioner during the time the applicant is completing a course of study as a
massage technician at a recognized school or until the applicant has successfully
passed the national certification examination for therapeutic massage and
bodywork; @)e. The massage trainee license shall expire one year form the
date issued and is not renewable, except in the case of sickness or accident for
which reason tohe education or certification exam was delayed. Applicant is
expected to successfully complete the massage technician course of study or pass
the national certification examination for therapeutic massage and bodywork during
the one-year time period the license is valid. The trainee must at all times comply
with all laws and ordinances in effect and the failure to comply may render the
applicant ineligible to obtain a massage technician’s license.
5.16.350 Massaqe school license.
It is unlawful for any person to operate massage school in the City unless
that school has qualified as a “recognized school” as defined in this chapter. If a
school so qualifies, it shall be treated as a massage - tjugi:hegs for
licensing purposes and shall be subject to all provisions of this chapter applicable
thereto.
Any persons employed in the school and involved with giving massage for
instruction or other purposes, shall be considered massage technicians for
licensing purposes and shall be subject to provisions of this chapter applicable
thereto.
5.1 6.360 Constitutionalitv.
If any section, subsection, sentence, clause or phrase of this chapter is for
any reason held to be invalid, such decision shall not affect the validity of the
remaining portions of this chapter. The Council declares that it would have adopted
irrespective of the fact that any one or more. sections, subsections, sentences,
clauses or phrases be declared invalid.
the chapter and each section, subsection, sentence, clause or phrase thereof,
(Deletions are lined out and additions are highlighted.)
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